IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080014080 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant request, in effect, physical disability retirement. 

2.  The applicant states, in effect, he served on active duty for more than 6 years as an infantry Soldier, including 2 combat tours.  He developed anxiety and depression and was separated by reason of physical disability with severance pay.  He believes he should have been medically retired.

3.  The applicant provides:

	a.  An unsigned self-authored statement, dated 1 August 2008.

	b.  A copy of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), 26 March 2007.  He was rated as 10 percent disabled for anxiety disorder, not otherwise specified (NOS), with onset in 2005 following deployments to Iraq.  The PEB recommended he be separated with severance pay and he concurred.

	c.  A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his discharge by reason of disability with $38,417.40 in severance pay.

	d.  A copy of DA Form 3349 (Physical Profile), dated 11 December 2006, and showing a permanent (P) numerical designator of 4 under functional capacity 


factor S (psychiatric).  A numerical designator of 4 indicates a medical condition or physical defect of such severity that performance of military duty must be drastically limited.  

	e.  A copy of a Department of Veterans Affairs (DVA) rating decision, dated 20 February 2008, granting him a 100 percent disability rating for post-traumatic stress disorder (PTSD) with anxiety and depression.

	f.  A copy of a DVA rating decision, dated 22 May 2007, granting him a 70 percent disability rating for PTSD with anxiety and depression.

	g.  A copy of his DA Form 3947 (Medical Evaluation Board Proceedings), dated 22 February 2007.  The MEB (Medical Evaluation Board) recommended he be referred to a PEB for anxiety disorder, NOS; depressive disorder, NOS; and alcohol dependence in early remission.

	h.  A copy of his MEB Narrative Summary (NARSUM), dated 7 February 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 20 November 2000 through
21 May 2007.  He attained the grade of staff sergeant/E-6 in military occupational specialty (MOS) 11B (Infantryman).

2.  The applicant served 2 tours of duty in Iraq during the periods 23 March 2003 through 23 July 2003 and 18 June 2004 through 20 June 2005, the first period covering the invasion of Iraq.

3.  During his service in Iraq, the applicant was in high stress, combat situations. His records show he was awarded the Combat Infantryman Badge.

4.  After his second deployment to Iraq, the applicant began experiencing symptoms of anxiety and depression.  He was removed from his normal troop-leading duties and given administrative responsibilities within his unit.  On 11 December 2006, he was given a P4 psychiatric profile and prohibited from carrying or firing a weapon.  He was determined to be unfit to perform infantry duties.

5.  The applicant was evaluated by military doctors in preparation for an MEB.  The MEB NARSUM determined that he had been involved in combat situations on numerous occasions; that he had suffered the loss of numerous comrades; 


and that he had received stressful news of a personal nature while in Iraq.  Following redeployment, he began experiencing increased depressed moods, tearfulness, anhedonia (loss of joy), poor sleep, poor appetite, decreased energy, and passive suicidal thoughts.  He was hospitalized in the psychiatric ward and followed by Army substance abuse program staff, a psychologist, and a psychiatrist.  He was determined to be suffering from depressive symptoms and significant anxiety of a PTSD-like nature.

6.  When the applicant’s unit deployed to Iraq in August 2006, the applicant was not included in the deployment and remained at Fort Drum, NY as part of the Rear Detachment.

7.  During his MEB, the applicant was diagnosed with the following medical conditions:

	a.  AXIS I:  Anxiety Disorder, NOS, characterized by an approximately eight month history of “increased startle, erratic sleep, intrusive memories of deployment, generalized anxiety, and increased irritability” that occurred after deploying to Iraq as an infantryman.  This has resulted in significant social and occupational impairment, making him medically unacceptable for continued service.

	b.  Depressive Disorder, NOS, characterized by “depressed mood, decreased energy, poor appetite and thoughts of suicide occurring within the context of loss of marriage necessitating inpatient hospitalization” and heavy alcohol use.

	c.  Alcohol dependence in early remission characterized by daily heavy use of alcohol upon returning from his second deployment to Iraq.

The MEB referred the applicant to a PEB.  The applicant concurred in that recommendation.

8.  An informal PEB was conducted on 26 March 2007 at Walter Reed Army Medical Center (WRAMC), Washington, DC.  The PEB rated the applicant as 10 percent disabled for MEB diagnoses 1 and 2 (anxiety disorder and depressive disorder).  The PEB stated:  the applicant was being treated with anti-depressant and anti-anxiety medications with mild improvement of his symptoms; he was performing non –infantry, administrative duties in the unit Rear Detachment; his psychological difficulties had improved and only had a mild impact on his industrial and social capabilities as shown by his capacity to work.  As for MEB diagnosis number 3 (alcohol dependence), it was determined to be not unfitting.

9.  The informal PEB recommended the applicant be separated with severance pay if otherwise qualified.  The applicant concurred.

10.  On 21 May 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(4), by reason of disability, with severance pay.

11.  Since his discharge, the applicant has been evaluated by the DVA on two occasions, 22 May 2007 and 20 February 2008.  He was initially rated as 70 percent disabled, followed by an increase to 100 percent disabled.

12.  In the processing of this case, a 3 November 2008 advisory opinion was obtained from the US Army Physical Disability Agency (USAPDA), WRAMC, Washington, DC, which recommends that his PEB be corrected to reflect a 30 percent disability rating and a recommendation that he be placed on the Temporary Disability Retirement List (TDRL) at half pay, effective 21 May 2007.  The opinion states that the applicant did not meet medical retention standards for anxiety and depressive disorders; however, his condition could have supported a higher disability rating.  Although his conditions were improving and he was adequately performing administrative duties, the evidence “[did] not appear to support that his occupational impairment was due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or that his symptoms were controlled by continuous medications.  It appears that the applicant would be better rated at 30 percent with placement on the [TDRL]…based on occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The advisory opinion recommended immediate TDRL medical re-evaluation commence as soon as the applicant’s service records are corrected.

13.  The applicant was provided an opportunity to respond to the advisory opinion.  On 6 January 2009, the applicant concurred with the advisory opinion via the DVA’s Watertown (NY) Veterans Center.

14.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18. It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably 


perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

15.  The objectives of the Army PDES are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-
connected disability, and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501 as evidenced in a medical evaluation board; receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the PEB.  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active Federal service.  For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active Federal service; and (2) Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, which is what might happen in the future.  If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEB Liaison Officer (PEBLO) for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the USAPDA to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

16.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

17.  The VASRD, in Section 4.130 – Schedule of Ratings – Mental Disorders, provides a general rating formula for mental disorders which states:

	a.  Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational only during periods of significant stress, or; symptoms controlled by continuous medication  shall be rated as 10 percent disabling.

	b.  Occupational and social impairment with occasional decrease in	efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) shall be rated as 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his disability separation be changed to disability retirement.

2.  The applicant suffers from a psychiatric injury incurred while serving as an infantryman engaged in multiple enemy actions while in Iraq during a period of war.  His disability resulted from a combat-related injury.

3.  During the applicant’s informal PEB, it was determined that his condition manifested in mild or transient symptoms which decreased work efficiency and ability to perform only during periods of significant stress, or were controlled by continuous medication.  Upon that basis, he was assigned a 10 percent disability rating.

4.  Upon re-examination of the applicant’s records during a request for an advisory opinion, the USAPDA opined that his condition could have supported a higher disability rating.  The opinion stated that it appears that the applicant would have been better rated at 30 percent with placement on the TDRL based on occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  This would have assigned a 30 percent disability rating and would have mandated his placement on the TDRL at 50 percent retired pay.

5.  One day after his disability discharge with severance pay, the DVA rated the applicant 70 percent disabled for PTSD with anxiety and depression.  Less than 1 year later, the DVA increased his rating to 100 percent.  The DVA’s actions lend credence to the USAPDA recommendation that the applicant’s PEB could have rated him as 30 percent disabled in March 2007.

6.  The ABCMR concurs with the advisory opinion of the USAPDA and the recommendation to correct the applicant’s PEB to show a 30 percent disability 


rating and a recommendation for placement on the TDRL.  The Board also concurs with the USAPDA recommendation that the applicant be immediately re-evaluated by a new PEB following his placement on the TDRL.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Correcting the disability description on his DA Form 199, dated 26 March 2007, to show, under VASRD Code 9413, that his psychological difficulties reflect occupational and social impairment with occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss;

	b.  Correcting the recommended disability percentage on his DA Form 199 from 10 percent to 30 percent;

	c.  Revoking Orders 107-1021, Headquarters, United States Army Garrison, Fort Drum, Fort Drum, NY, dated 17 April 2007;

	d.  Issuing orders placing him on the TDRL with a disability rating of 30 percent incurred as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law, and resulting from a combat-related injury as defined in 26 United States Code 104; and by

	e.  Directing his immediate TDRL medical re-evaluation.

2.  The Board further recommends that DFAS audit the applicant’s pay record to include recoupment of severance pay and payment of any monies due while on the TDRL.



															XXX
      _______ _   _______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080014080



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014080



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1